Johnson v. Kan. Dep't of Revenue

Citation472 P.3d 92,58 Kan.App.2d 431
Decision Date17 July 2020
Docket NumberNo. 119,151,119,151
Parties Morris JOHNSON, Appellant, v. KANSAS DEPARTMENT OF REVENUE, Appellee.
CourtCourt of Appeals of Kansas

Kevin J. Zolotor, of O'Hara & O'Hara LLC, of Wichita, for appellant.

Adam D. King, of Legal Services Bureau, Kansas Department of Revenue, for appellee.

Before Arnold-Burger, C.J., Warner, J., and Lahey, S.J.

Arnold-Burger, C.J.:

Morris Johnson appeals the district court's decision affirming the administrative suspension of his driver's license after he was involved in a single-vehicle, noninjury accident in January 2016. He raises two primary challenges: First, he challenges the court's finding that the officer had statutory authority to request blood-alcohol testing; and second, he asserts that the officer or the agency violated his due process rights after the officer read an unconstitutional implied consent advisory. Because we find that the district court relied on substantial competent evidence to find that the officer had reasonable grounds to believe that Johnson operated his vehicle while under the influence of alcohol before requesting a chemical test, the district court did not err. And because we find that Johnson has established no constitutional due process violation after the officer read implied consent advisories later found unconstitutional, his claim fails.

FACTUAL AND PROCEDURAL HISTORY

On an evening in January 2016, dispatchers sent Master Trooper Robert LaVelle to a car accident with possible injuries in Cowley County, Kansas. While the officer was still en route, another report came in that it was a noninjury accident, so he slowed down.

When LaVelle arrived, he began to investigate the accident while the driver—later identified as Johnson—was with EMS workers in an ambulance. Because there were no skid marks and the vehicle was upside down in the opposite ditch, LaVelle ultimately determined Johnson had failed to navigate a curve, gone off the road, then overcorrected and rolled the vehicle off into the opposite ditch. After his investigation, LaVelle told the EMS workers to bring Johnson back to his patrol car when they were finished evaluating and treating him.

Eventually, they began to escort Johnson from the ambulance to the trooper's patrol car. LaVelle testified he noticed Johnson sway from one side to the other as he walked to the car and the firefighters had to weave around Johnson to keep up with him. The lights from the patrol car reflected in such a way to make a straight line from the ambulance, so LaVelle could see Johnson go from one side of the line to the other as he was walking.

Once Johnson was placed in the car, an EMS worker told LaVelle that Johnson had given the wrong birth date while in the ambulance and that he had smelled a very strong odor of alcohol while in the ambulance with Johnson. LaVelle also noticed the odor of alcohol and that Johnson had bloodshot eyes. Johnson failed some nonstandardized field sobriety tests but LaVelle chose not to perform the walk-and-turn test or the one-legged-stand test because of the accident. As a result, LaVelle read Johnson his Miranda rights and placed him under arrest for driving under the influence of alcohol (DUI). LaVelle then provided Johnson with a copy of the implied consent advisories form (DC-70) and asked Johnson to submit to an evidentiary breath test.

The DC-70 advisory form provided to Johnson stated, in part:

"1. Kansas law ( K.S.A. 8-1001 ) requires you to submit to and complete one or more tests of breath, blood or urine to determine if you are under the influence of alcohol or drugs or both.
"2. The opportunity to consent to or refuse a test is not a constitutional right.
....
"4. If you refuse to submit to and complete any test of breath, blood or urine hereafter requested by a law enforcement officer, you may be charged with a separate crime of refusing to submit to a test to determine the presence of alcohol or drugs, which carries criminal penalties that are greater than or equal to the criminal penalties for the crime of driving under the influence if you have a prior refusal for an evidentiary test for alcohol or drugs or a prior conviction or diversion for DUI or driving a commercial motor vehicle with an alcohol content of .04 or more, and such prior refusal or conviction occurred on or after July 1, 2001, and when you were 18 years of age or older."

Johnson agreed to take a breath test, which revealed he had a blood-alcohol concentration of 0.163. LaVelle then completed and provided Johnson with a certification and notice of suspension form (DC-27).

Johnson formally requested an administrative hearing. The administrative hearing officer affirmed the suspension of Johnson's driving privileges, finding LaVelle had reasonable grounds to believe Johnson was DUI and reflecting Johnson was involved in a motor vehicle accident. The hearing officer also rejected Johnson's challenge to the advisories.

Johnson timely petitioned for judicial review, arguing the officer lacked reasonable grounds to request testing, that probable cause to arrest him was lacking, and that the advisories in the DC-70 coerced his consent in violation of his due process rights. After a hearing, at which LaVelle and Johnson testified, the district court denied Johnson's petition, affirming the suspension of his driving privileges. First, the court noted the facts were sufficiently similar to Wright v. Kansas Dept. of Revenue , No. 116,777, 2017 WL 6062260 (Kan. App. 2017) (unpublished opinion), rev. denied 310 Kan. 1071 (2019), to warrant the same outcome. When discussing whether LaVelle had probable cause to arrest Johnson for a DUI, the court explained:

"Trooper LaVelle completed a 20- to 30-minute investigation of the accident scene before even speaking to [Johnson]. He noted no skid marks in the accident and that it was of sufficient severity to roll the vehicle. Under the Poteet [v. Kansas Dept. of Revenue , 43 Kan. App. 2d 412, 233 P.3d 286 (2010) ] case, the officer's belief and reasonable basis for finding under the influence of alcohol was only based on his observations of the accident scene and a statement from EMS. There was no meeting of that officer with or testing of the driver. Here, in addition to the scene of the accident and the statement of EMS, Trooper LaVelle noted on the DC-27 report admitted into evidence several observations of [Johnson] listed in paragraph no. 7, without even any testing required. As to Trooper LaVelle doing no walking test, [Johnson's] argument that the accident could have caused him to weave when walking towards the vehicles is unpersuasive. [Johnson] refused treatment from EMS, so no injury was sufficient to prevent his walking. And his walking to the officer or trooper's vehicle was at least 45 minutes to an hour after the accident and after the observations by the EMS, as far as injuries were concerned to petitioner."

Johnson timely appealed.

ANALYSIS

The officer had statutory authority to request a breath test.

Johnson argues the district court erred in concluding the officer had reasonable grounds to request a breath test or probable cause to arrest him for DUI. First, he asserts the court committed legal error by applying an incorrect legal standard when evaluating probable cause, warranting a remand so the district court can apply the correct standard. Alternatively, Johnson points to the lack of any field sobriety testing before his arrest as support to overturn the suspension.

Our standard of review is substantial competent evidence.

When reviewing a district court's decision in a driver's license suspension case, appellate courts generally will determine whether substantial competent evidence in the record supported the district court's factual findings and whether the conclusion derived from those findings is legally correct. Casper v. Kansas Dept. of Revenue , 309 Kan. 1211, 1213, 442 P.3d 1038 (2019). Substantial competent evidence is evidence that has both relevance and substance and provides a substantial basis of fact from which the court can reasonably resolve the issues. Wiles v. American Family Life Assurance Co. , 302 Kan. 66, 73, 350 P.3d 1071 (2015).

In Casper , the Kansas Supreme Court clarified that " [i]n determining whether substantial competent evidence supports the district court's findings, appellate courts must accept as true the evidence and all the reasonable inferences drawn from the evidence which support the district court's findings and must disregard any conflicting evidence or other inferences that might be drawn from it.’ " (Emphasis added.) 309 Kan. at 1220, 442 P.3d 1038 ; see also Poteet v. Kansas Dept. of Revenue , 43 Kan. App. 2d 412, 414, 233 P.3d 286 (2010) ("[W]e do not consider other evidence that might support a different result as long as sufficient evidence supports the district court's decision."). Nor will this court reweigh evidence, resolve evidentiary conflicts, or make witness credibility determinations. State v. Chandler , 307 Kan. 657, 668, 414 P.3d 713 (2018).

Before the KDOR may suspend a person's driver's license for a breath test failure, a law enforcement officer must certify that the officer had reasonable grounds to believe that the person had operated a vehicle while under the influence of alcohol. K.S.A. 2015 Supp. 8-1002(a)(2). Whether an officer had "reasonable grounds" is a mixed question of law and fact, so this court will independently review the district court's ultimate legal conclusion—whether reasonable grounds existed—but will defer to the district court's factual findings. Casper , 309 Kan. at 1213, 442 P.3d 1038 (citing Poteet , 43 Kan. App. 2d at 415, 233 P.3d 286 ).

We review legal standards applicable in an administrative driver's license suspension case.

As a starting point, we briefly review some of the legal standards applicable in an administrative driver's license suspension case.

The implied consent statute requires an officer to request a person...

To continue reading

Request your trial
5 cases
  • State v. Coleman, No. 120,246
    • United States
    • United States State Supreme Court of Kansas
    • September 11, 2020
    ......Coleman , 271 Kan. 733, 26 P.3d 613 (2001) ( Coleman I ), this court upheld the convictions ......
  • Sweeney v. Kan. Dep't of Revenue
    • United States
    • Court of Appeals of Kansas
    • December 30, 2022
    ...are reviewed de novo. Creecy v. Kansas Dept. of Revenue , 310 Kan. 454, 469, 447 P.3d 959 (2019) ; Johnson v. Kansas Dept. of Revenue , 58 Kan. App. 2d 431, 436, 472 P.3d 92 (2020) ("When reviewing a district court's decision in a driver's license suspension case, appellate courts generally......
  • Sweeney v. Kan. Dep't of Revenue
    • United States
    • Court of Appeals of Kansas
    • December 30, 2022
    ...are reviewed de novo. Creecy v. Kansas Dept. of Revenue, 310 Kan. 454, 469, 447 P.3d 959 (2019); Johnson v. Kansas Dept. of Revenue, 58 Kan.App.2d 431, 436, 472 P.3d 92 (2020) ("When reviewing a district court's decision in a driver's license suspension case, appellate courts generally will......
  • Anderson v. Kansas Department of Revenue
    • United States
    • Court of Appeals of Kansas
    • January 29, 2021
    ...action in arresting Anderson and requesting that she submit to an evidentiary breath test. See Johnson v. Kansas Dept. of Revenue, 58 Kan.App.2d 431, 436-37, 472 P.3d 92 (2020), petition for rev. filed August 17, 2020. Anderson's Arrest Anderson was initially stopped for a traffic infractio......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT